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The Government Embraces Unreasonableness: Supreme Court Need Not Apply

A Coup in Review

July 13, 2023


This week has marked a significant victory for advocates of the judicial coup in Israel. At the stroke of midnight on Monday, the Knesset, Israel's parliament, cast the initial approval for an anti-democratic bill aimed at curtailing the Supreme Court’s authority to use 'extreme unreasonableness' as a criterion to review governmental and elected officials' decisions.

This bill, backed unanimously by the 64 members of the coalition and contested by 56 opposition members, represents a dramatic shift in the nation's balance of powers.


The legislative process in Israel now sends the bill back to the Knesset's Constitutional, Law and Justice Committee for further refinement. MK Simcha Rothman, the committee chair and a key orchestrator of the judicial coup, will determine when the bill is ripe for the final two votes in the Knesset's plenary, typically held on the same day. The coalition's strategy is to push the bill through by July 25, just before the Knesset enters its summer recess.


Rothman wasted no time initiating discussions on the bill, convening the first meeting a mere 12 hours after Monday's midnight vote. Despite some coalition members' pledges to moderate the law's ambit, Rothman persists in advocating for a comprehensive version of the bill that would essentially leave many aspects of governmental decision-making beyond judicial review.


Credit: Gaby Danziger, Shatil Stock Photography

Most significantly, this bill could provide ministers with unbridled authority to appoint and dismiss public officials at their discretion. Rothman dismissed concerns voiced by the Treasury's legal counsel at a committee meeting, who asserted that the bill could enable ministers to arbitrarily dismiss treasury employees, thereby stifling government officials from expressing dissenting opinions.


This proposed bill would effectively empower ministers to override and enact measures within the jurisdiction of any unelected officials under their purview. Consequently, this would pave the way for the execution of severely unreasonable administrative decisions, absent any form of judicial oversight.


In response to the bill's initial approval, waves of protests washed over the country the next day, including at Ben Gurion Airport. The government, feeling the heat, called upon Attorney General (AG) Gali Baharav Miara at the government’s weekly meeting to outline her strategy in managing these demonstrations.


AG Miara underscored the serious constitutional implications of governmental interference in independent law enforcement decisions, especially those concerning protests against government policies. However, the government ministers’ complaints did not fall on deaf ears as Tuesday's protesters were met with an amplified police presence, leading to over 80 arrests and several injured protesters.


Minister of National Security, Itamar Ben-Gvir of the ultra-right Otzma Yehudit party, reassured coup supporters that the 'unreasonableness' bill was just the beginning, vowing to proceed with the proposed judicial coup despite growing opposition.


The two most influential factions resisting the coup have been the Israeli Air Force reserve volunteer fighter pilots and the 'Histadrut' labor union. The pilots are on the verge of withdrawing their voluntary services, presenting a significant security issue for the government. Meanwhile, the Histadrut labor union, with the potential to paralyze the economy through strike action, remains undecided.

 

Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.

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